This
Bill proposes amendment s to the Workplace Relations Act 1996
(the WR
Act) by limiting and clarifying the allowable award matters and making related
changes to the award making powers of the Australian Industrial Relations Commission
( Commission ) .

The
Bill proposes to simplify the allowable award matters by:

· r emov ing
various items from the list of allowable award
matters ;

· tightening the scope of some existing allowable
matters; and

· making explicit various matters which are not within the scope of allowable award
matters .

The Bill proposes to clarify the following aspects of award
making:

· p rovisions incidental to
an award may only be included in an award where they are essential
for the operation of that award;

· p rovisions which
facilitate agreement making in the workplace are allowable award
matters; and

The Bill proposes that
exceptional matters orders only be made by a Full Bench of the
Commission.

The Bill also proposes transitional
arrangements which require the
Commission to review all awards within a period of 12 months to
ascertain whether they contain provisions that may no
longer be included as allowable award matters due to the amendments
contained in the Bill. At the end of
the 12 month review period, any provision in an award which is no
longer an allowable matter due to the amendments proposed in the
Bill will cease to have effect. This
Bill proposes new preconditions for the taking or
organising [PC1] of
protected industrial action by employees and organisations of
employees. It is proposed
that in order for industrial action In order to be
protected action under the provisions of the Workplace Relations
Act 1996 (the Act), it
it is proposed that industrial action must be preceded by a secret
ballot process overseen by the Australian Industrial Relations
Commission (the Commission) that approves
the taking of the action .

The new provisions are intended to
ensure that protected industrial action is not used as a substitute
for genuine discussions during a bargaining period, and to ensure
that the final decision to take industrial action is made by the
employees directly concerned.

Under the new provisions, a union or employees
would be required to apply to the Commission for an order that a
‘protected action ballot’ be held. The Bill
includes proposed amendments and new provisions to ensure that
where employees wish to initiate a bargaining period or apply for a
protected action ballot order, they may do so through an agent,
with their identity protected.

The Commission would not be able to
order a ballot unless a bargaining period is in place, and the
applicant has been genuinely negotiating to reach an
agreement.

The Bill proposes that if a union makes an
application for a ballot, only union members whose employment would
be covered by the proposed agreement would be entitled to vote in
the ballot. If employees who are seeking a non-union agreement make
the application, all employees whose employment would be covered by
the proposed agreement would be entitled to vote in a ballot. In
either case, employees who are party to an Australian Workplace
Agreement whose nominal expiry date has not passed would not be
eligible to vote.

The
new provisions set out proposed procedural requirements for
ballots, including specific information that would be required to
be provided to employees in ballot papers. Industrial action
would be authorised by a ballot if at least 50 per cent of eligible
voters participate in the ballot, and if more than 50 per cent of
the votes cast are in favour of the proposed industrial
action.

The
Bill also proposes consequential changes to the existing secret
ballot provisions of the Act.

[ Under the existing
secret ballot provisions (sections 135-140), the Commission may
order secret ballots of union members in relation to industrial
disputes and of union members or groups of employees concerning
threatened, impending or probable industrial action. Members
of unions may also request the Commission to order a ballot be held
in relation to proposed industrial action.]

FINANCIAL IMPACT
STATEMENT

The proposals contained in the Bill are
budget neutral.

REGULATION IMPACT
STATEMENT

Analysis o f Key
Elements o f t he
Bill

Background

One of the primary objectives of the
WROLA Act was to reinforce the primacy of workplace
agreement-making in the federal workplace relations
system. To
achieve this objective, it was necessary to amend provisions of the
WR Act dealing with awards as well as those dealing with
agreement-making. The
purpose of the amendments to the awards provisions was to
fundamentally refocus the role of award system as a safety net of
minimum wages and conditions of employment that would not operate
as a disincentive to agreement-making. The relevant
amendments made by the WROLA Act:

· inserted new objects into Part VI of the WR Act
to reflect the safety net role envisaged for awards and the role of
the Commission in maintaining the safety net (section 88A of the WR
Act);

· specified the matters to which the Commission
must have regard in ensuring that a safety net of fair minimum
wages and conditions of employment is established and maintained
(section 88B);

· limited the matters in relation to
which the Commission could exercise arbitration powers to 20
'allowable award matters' [1] (set
out in section 89A of the Act) [2] and provided for existing awards to be
simplified so as to provide only for allowable award matters (Part
2 of Schedule 5 to the WROLA Act);

· precluded the Commission from dealing
with industrial disputes in relation to employees whose wages and
conditions of employment are governed by a State award or
employment agreement except where ceasing to deal with such a
dispute would not be in t he public interest (section 111AAA of the WR
Act); and

· provided for State awards and certain
forms of State agreements to displace federal awards (section
152).

Award simplification

The
approach taken by the Commission to the application of section 89A
of the WR Act and Part 2 of Schedule 5 to the WROLA Act for the
purposes of simplifying awards has, in many instances, resulted in
awards continuing to contain provisions that are outside the
intended scope of the allowable award matters. As a
consequence, many awards continue to contain unnecessary detail and
administrative regulation (for example, provisions regulating the
transfer of employees between work locations), provisions that
hinder productivity and the efficient performance of work (for
example provisions prescribing the proportion or number of
employees that may be engaged in particular job classifications)
and regulate matters that are more appropriately dealt with at the
workplace level (for example, education and
training).

There are also concerns that the allowable award
matters include matters in relation to which award regulation is
unnecessary because they are provided for in federal or State
legislation. These include, for example, notice of
termination of employment and long service leave.

Where matters are the subject of both
statutory and award regulation, employers can be confronted with
complex and confusing compliance requirements. It
is not always clear to employers which set of requirements apply,
and in some cases, obligations will differ across a workplace. For
example, the employment of some employees in a workplace may be
regulated by an award which includes long service leave provisions,
while the employment of other employees in the same workplace may
be award-free or be covered by an award that includes different
entitlements or does not include long service leave
provisions.

Only 182 Awards were simplified or set
aside through award simplification in the 18 month interim period
under the WROLA Act. Since then 2,422 awards have been simplified or
set aside with 376 currently being simplified.

Options

Option 1: Status
Quo

Option 2: Amend the WR
Act

Amend the WR Act to ensure that awards
operate as intended as a genuine safety net of basic minimum wages
and conditions by:

· reducing the scope
of the allowable award matters by amending subsection 89A(2) of the
WR Act to exclude:

- skill based career paths;

- bonuses

- long service leave;

- notice of termination;

- jury service.

· clarifying the scope of the remaining allowable
matters to ensure that they operate as intended, for
example:

- 'cultural leave' covers only ceremonial leave
for Aboriginal and Torres Strait Islanders and other similar types
of cultural or religious obligations;

- 'allowances' covers only the reimbursement of
expenses incurred in the course of employment, and allowances for
skills not taken into account in the employee’s rate of pay
or for disabilities associated with the performance of particular
tasks, or work in particular conditions or
locations;

- “redundancy pay” only covers genuine
redundancy and not to custom and practice that arises in certain
industries.

- 'public holidays' covers only gazetted public
holidays observed generally throughout the community and not days
such as union picnic days; and

- provisions dealing with training and education,
accident make up pay, union picnic days, quotas on particular types
of employment, dispute settling procedures that do not allow for
freedom of choice in representation or maximum or minimum hours of
work for regular part-time employees are not included in
awards.

· limiting the
application of subsection 89A(6) to ensure that only those
provisions that are incidental to an allowable award matter
provided for in the award and ‘essential for the purpose of
making a particular provision operate in a practical way’ may
be included in awards;

· accelerating
the progress of award simplification, by providing for a 12-month
interim period before non-allowable matters cease to have effect
(compared with the provision of an 18 month period under the 1996
legislation); and

· ensuring
that all exceptional matters orders must be made by Full bench of
the Australian Industrial Relations
Commission.

Parties ’ views

The Australian Chamber
of Commerce and Industry consider that despite the 1996 workplace
relations reform package, there are still further challenges
including that the system continues to be unduly complicated and
prescriptive and that the award system continues to have too great
a role vis-Ã -vis agreements.

Impact
Analysis

Option 1: Status
Quo

Costs

Awards containing unnecessary detail
and administrative regulation (for example, provisions regulating
the transfer of employees between work locations), provisions that
hinder productivity and the efficient performance of work (for
example provisions prescribing the proportion or number of
employees that may engaged in particular job classifications) and
provisions that regulate matters that are more appropriately dealt
with at the workplace level (for example, education and training)
impose costs on businesses in terms of productivity and unnecessary
regulation.

Federal awards that
require employers to compensate their employees for pay lost whilst
undertaking jury service can impose significant burdens on
employers. The precise cost
impact will vary according to the jurisdiction in which jury
service is performed, the employee's rate of pay and the duration
of jury service.

Payment arrangements for jury service
vary substantially between jurisdictions. Some
jurisdictions provide for payment of compensation in respect of
lost wages in addition to daily rates, but these amounts are
capped. Other jurisdictions make no provision for
compensation for lost wages, but generally provide for higher daily
payments than those jurisdictions that provide for compensation for
lost wages. For
example, if a tradesperson whose employment is regulated by the
Metal, Engineering and Associated Industries Award 1998 and
is paid $477.20 per week performs jury service for 10 days, there
are two jurisdictions in which payments made by the State would
fully meet the employee's ordinary award wages. In all other
jurisdictions, the employee's employer would be required to make
some payment, varying across jurisdictions, to top up the
employee's jury payments so that the employee continues to receive
an amount equivalent to his or her ordinary award
wages.

Employers would be
liable to meet higher costs where an employee performs jury service
in a long trial and where it is necessary for the employer to
engage a replacement employee during the absence of the employee
performing jury service. These costs can impose a disproportionate burden
on small businesses as it is more difficult for them to absorb
unanticipated costs and to cover the absence of an employee without
engaging a replacement. Small businesses will often need to meet the
cost of engaging a replacement employee as well as make up pay for
the employee performing jury service, while larger businesses may
have greater flexibility to cover an
absence.

The regulation of employment conditions
through both award provisions and legislation is complex and
confusing and creates an unnecessary administrative burden for
employers.

The slow progress of the award
simplification process has meant that some awards still have not
been varied to remove 'non-allowable' matters, unnecessary detail
and provisions that hinder productivity and the efficient
performance of work.

Whilst non-allowable matters are of no
effect [3] , their
retention can be confusing for award parties who may be uncertain
about their rights and obligations. The
continued operation of provisions that come within the scope of the
allowable matters but contain unnecessary detail or hinder
productivity and the efficient performance of work impose
additional compliance costs and unnecessary costs incurred because
potential productivity gains have been prevented by restrictive
award provisions.

Benefits

The primary benefits of
the existing arrangements are that, compared with the previous
legislation, (including previous measures to modernise awards), the
reforms introduced by the WROLA Act have resulted in the
simplification of number of key awards and have contributed towards
refocussing the award system as a safety net that does not act as a
disincentive to bargaining.

Option 2: Amend the WR
Act

Costs

The amendments relating
to the allowable award matters will require the review of almost
all federal awards [4] . The
parties (ie unions, employers and employer organisations) to awards
that are to be simplified will be required to devote resources to
that task and, where necessary, to participation in review
proceedings in the Commission. The Commission will be required to
vary awards to bring them into line with the allowable award
matters. In addition to those awards not yet simplified, the
Commission's award simplification function currently being
undertaken under Schedule 5 to the WROLA Act would continue
pursuant to the WR Act as amended.

It is relevant to note
that there will be substantially fewer awards in place when the new
simplification process commences than was the case at the
commencement of the WROLA Act process, so the overall size of the
task will be smaller. As at 30
September 2002, there were

2,156 current awards.
At the commencement of the WROLA Act process there were 3 253
awards in place.

Some employers may incur additional
costs as a result of obligations that arise under State/Territory
long service leave legislation. The impact of the
removal of long service leave from federal awards will depend on
the terms of the relevant award provisions, the legislation that
would apply in place of award obligations and the extent to which
long service leave entitlements are provided for by way of
agreements.

The removal of jury service from the
allowable award matters may require State and Territory Governments
to meet additional costs in connection with jury service. As
noted above, payment arrangements for jury service vary
substantially between jurisdictions. Any decisions about
whether existing State/Territory arrangements should be changed to
take into account the fact federal awards would no longer require
employers to provide 'make-up' pay for employees engaged in jury
service are matters for States and Territory
Governments.

Benefits

The benefits of option
2 are that:

· the award safety net
would not impede workplace efficiency or organisational
effectiveness by imposing industry-wide obligations that do not
meet the different needs of individual
workplaces;

· award provisions would
not duplicate matters that are dealt with in legislation, thus
eliminating confusion that duplicate statutory and award provisions
can create for employers and employees at the workplace
level;

· employers will benefit
from being relieved of award obligations to meet costs associated
with jury service which are more appropriately the responsibility
of the relevant judicial
systems;

· by providing for a 12
month transitional period to bring existing awards into line with
the revised allowable matters and award simplification criteria,
the productivity benefits and cost savings are made available to
workplaces more quickly than was the case under the 18 month
transitional period that applied under the WROLA Act;
and

· employers and employees
will have greater freedom of choice as to the form of regulation
that is most appropriate to their needs.

Conclusion and
Recommended Option

Option 2 further
focuses awards on their role as a safety net to protect the low
paid. In this way, awards will
provide a safety net that does not create a disincentive to
agreement making, and in doing so, will ensure that
agreement-making remains the primary focus of the federal workplace
relations system.

Whilst the further
award simplification measures in option 2 will require award
parties and the Commission to devote resources to reviewing and
varying almost all federal awards, the further simplification of
awards provides for more flexibility in workplace regulation and
less prescription in awards than the existing arrangements, thus
providing a basis for increased productivity and reduced costs for
businesses.

Although the removal of additional
matters from the scope of the allowable award matters will reduce
award regulation, it is open to employers and employees to make
other arrangements in respect of those matters where it is
appropriate to the needs of their particular workplaces to do so.
In some instances, parties might choose to provide for
particular matters by way of agreement and some others matters
might be dealt with by way of policies and procedures at the
workplace.

Under option 2, parties will continue
to be able to seek award regulation in respect of non-allowable
matters where the matters involved are exceptional and a harsh or
unjust outcome would result from the exclusion of award regulation.
In this way, option 2 strikes an appropriate balance between
reducing award regulation generally and providing additional
regulation where necessary in the public interest.

Option 2 provides for a
12 month transitional period to bring existing awards into line
with the revised allowable matters and award simplification
criteria compared with an 18 month transitional period that applied
under the WROLA Act. This will allow sufficient time for an
orderly transition to the new arrangements without unduly delaying
access to the productivity benefits and cost savings that may be
achieved through simplified awards.

Commonwealth. The applicant will be liable
for the costs of the ballot, but the Commonwealth will reimburse to
applicants 80 per cent of the reasonable costs incurred in holding
the ballot. [PC2]

NOTES ON
CLAUSES

Clause 1 - Short
title

1.
This is a formal provision specifying the short title of the
Act.

Clause 2 -
Commencement

2.
This clause specifies when the various provisions of the Act are
proposed to commence. Sections 1 to 3 and anything in the Act not
elsewhere covered by the table will commence on the day on which
the Act receives the Royal Assent. Subclause 2(1) provides that, subject to
subclauses (2) and (3), the Bill commences on
proclamation The amendments
set out in Schedule 1 will commence on a single day to be fixed by
proclamation, subject to subsection (3) .

3.
Subclause Subsection 2 (2 3 ) Clause 2 has the effect that if
the Bill an
item in the table is not proclaimed to commence within
six months of the Act receiving Royal Assent, it will commence on
the day following that period of six months.

4.
Subclause 2(3) provides that, if either the Workplace Relations
Amendment (Australian Workplace Agreements Procedures) Act 2000
or item 3 of schedule 1 of the the Workplace Relations Amendment
(Termination of Employment) Act 2000 commence before this Act,
item 1 of Schedule 1 (which proposes a definition of ‘old IR
agreement’) does not commence at all.

Clause 3 -
Schedule(s)

4. 5.
This clause provides that an Act that is specified in a Schedule is
amended or repealed as set out in that Schedule, and any other item
in a Schedule operates according to its terms.

1.1 This Schedule proposes amendments to Part VI of
the Workplace Relations Act 1996 (the WR Act), which are
directed towards ensuring that awards
act as a safety net of basic minimum wages and conditions of
employment in respect of
appropriate allowable award matters .

1.2 The proposed amendments provide for further
simplification of awards.

Part 1 -
Amendments

Workplace Relations Act
1996

Item 1 -
Subsection 4(1)

1.
The current definition of ‘certified agreement’
(subsection 4(1)) is limited to agreements certified under the
current provisions (which were introduced by the Workplace
Relations and Other Legislation Amendment Act 1996 and
commenced on 31 December 1996).

2.
This item proposes to insert a definition of ‘old IR
agreement’. The concept of an old IR agreement (which is
defined to mean an agreement certified or approved under various
now repealed provisions of the Act) is relevant in relation to when
a protected action ballot may be ordered.

Item
1 2 -
At the end of Section 4 Paragraph 89A(2)(a)

1.3 3.
This item proposes a technical amendment. The effect of this item,
which is consequential upon the amendment proposed by item 1 of
this Schedule, is that a reference to the
nominal expiry date of an agreement would include a reference to
the end of the period of operation of an old IR agreement
(an “old IR
agreement ” is defined in subsection 4(1) of the
Act) . would remove
‘skill based career paths’ from the allowable award
matters. These matters are more appropriately dealt with at
the enterprise or workplace level and, if regulation by an
industrial instrument is necessary, by a certified agreement or an
Australian Workplace Agreement.

Item 2 - Paragraph
89A(2)(d)

1.4 This item would remove ‘ bonuses’ from the allowable award
matters. These matters are more
appropriately dealt with at the enterprise or workplace level and,
if regulation by an industrial
instrument is necessary, by a certified agreement or an Australian
Workplace Agreement. ‘ Piece rates ’ would be retained in
the list of allowable matters to allow the
Commission to include clauses relating to piece rates in
awards.

Item 3 - Paragraph
89A(2)(f)

1.5 This item would remove ‘long service leave ’ from the
allowable award matters. Minimum standards of long service leave would be
regulated by State or Territory legislation.

Item 4 - Paragraph
89A(2)(g)

1.6 This item would omit ‘cultural leave’ from
paragraph 89A(2)(g) and ‘other like

forms of leave’ from the allowable award
matters. The
capacity to include in an award provision

for
certain forms of cultural leave is provided for in proposed
paragraph 89A(2)(ga) [ I tem 5 of this
Schedule].

Item 5 - After paragraph
89A(2)(g)

1.1 Proposed new
paragraph 89A(2)(ga) would include in the allowable award matters
leave for Aboriginal and Torres Strait Islander people to meet
ceremonial obligations and leave for other cultural or religious
obligations of a similar nature. Item 3 - Subsection 134(5)
(paragraphs (d) and (e) of the definition of prescribed
premises )

4.
This item proposes to amend the definition of ‘prescribed
premises’ in section 134 of the Act. The amendment is
consequential and would replace a reference to existing
section 136 (which is to be largely repealed by item 7),
with a reference to proposed Division 8A of Part VIB (to be
inserted by item 23), which would contain new provisions relating
to protected action ballots.

Item 4 - Subsection
135(2)

5.
This item proposes to repeal existing subsection 135(2), under
which the Commission may order a secret ballot of members of an
organisation where it appears to the Commission that a ballot may
help to stop or prevent industrial action, and substitute a new
subsection. This power will no longer be appropriate following
the introduction of requirements for protected action
ballots.

6.
New subsection 135(2) would prevent the Commission from ordering a
secret ballot of members of an organisation under subsection 135(1)
where the organisation has initiated a bargaining
period under section 170MI for an agreement. This would
ensure that a decision of employees or a union to apply for a
protected action ballot could not be pre-empted by the
Commission.

Item 5 - Subsection
135( 2B)

7. For the same reasons as outlined in relation to
subsection 135(2) [item 4], T t his item proposes the repeal of
existing subsection 135(2B), which allows the Commission to order a
secret ballot to determine whether employees support taking
industria l action where it appears that
industrial action is being taken or is threatened, impending or
probable, for the same reasons as outlined in relation to
subsection 135(2) [item 4].

Item
6 - Subsection 135(3)

8.
This item proposes a consequential amendment to subsection 135(3)
to remove the reference to existing subsection 135(2), which would
be repealed [item 2 of this
Schedule].

Item
7 - Subsections 136(1), (2), (3), (4), (5), (6) and
(7)

9.
This item proposes the repeal of existing subsections 136(1), (2),
(3), (4), (5), (6) and (7). These subsections currently permit
members of an organisation, who have been requested or directed by
the organisation to engage in industrial action, to apply to the
Commission to order a secret ballot to find out whether or not the
members support the proposed industrial action. These provisions
would no longer be required, as it is proposed that protected
industrial action could not take place before a protected action
ballot of members is conducted under proposed Division 8A.
Industrial action taken without the authorisation of such a ballot
would not be protected and it would be inappropriate for the
Commission to be involved in ordering a ballot in such
circumstances; rather the various compliance measures in the Act
and elsewhere are available in relation to participants in such
action.

Item 6 - Paragraph
89A(2)(i)

1.7 This item would repeal paragraph 89A(2)(i) and
replace it with a new provision that further limits the scope of
the Commission’s powers under subsection 89A(1) in respect of
public holidays. Proposed paragraph 89A(2)(i) would limit the
Commission’s powers to includ e in an award provisions
dealing with:

· the observance of days declared by State or
Territory Governments to be observed as public holidays generally
within the State or Territory or region of the State or Territory
concerned by employees who work
in the relevant State, Territory or region ; and

· the entitlements of
employees paid in respect of those days.

1.8 Proposed paragraph 89A(2)(i) would preclude the
Commission from including in awards

provisions that treat particular days as public
holidays in addition to those declared by State and Territory Governments to be observed generally
in the relevant community as public holidays.

This
means that an award could not include as public
holidays additional days which
may be or may have been treated as ‘extra’ public
holidays in a particular
industry.

1.9 Proposed paragraph 89A(2)(i) is not intended to
preclude an award from providing for the substitution of different days to be observed as
public holidays or from providing for arrangements to be made at the workplace or
enterprise level for the substitution of different days to be
observed as public holidays.

Item
7 - Paragraph 89A(2)(j)

1.10 This
item would replace existing paragraph 89A(2)(j) (which includes
‘allowances’ as an allowable matter) with a new
provision limiting the type of allowances that may be included in
an award to monetary allowances payable to employees for expenses
incurred in the course of their employment, particular
responsibilities or skills that are not taken into account in the
employee’s rate of pay or for disabilities associated with
the performance of particular tasks (for
example, handling hazardous materials, or work in
particular conditions or locations, for example remote locations).

1.1 Item
8 - Paragraphs 136(8)(a) and
(b)

10. This
item proposes to repeal existing paragraphs 136(8)(a) and (b), and
substitute new paragraphs. New paragraph (a) would omit existing
references to subsections 135(2) and 136(2), which it is proposed
be repealed [see items 4 and 7].

11. The
effect of new paragraph (b) would be to remove the
Commission’s power to revoke an order for a secret ballot
because industrial action has cease d
as d . The the new
provisions regulating protected action ballots will make this
unnecessary , ( as it is proposed that protected
industrial action could not take place before a protected action
ballot is conducted ) . The power to revoke the order
for a secret ballot because the industrial dispute has been, or is
about to be settled, has been
retained.

Item
9 - Subsections 136(8B), (9) and (10)

Item
10 - Subsection 137(1)

Item
11 - Subsection 138(1)

Item
12 - Subsection 138(2)

Item
13 - Subsection 138(5)

Item
14 - Subsection 138(6)

Item
15 - Section 139

Item
16 - Section 140

Item 8 - Paragraph
89A(2)(m)

1.11 Existing paragraph 89A(2)(m) allows awards to
provide for redundancy pay. Item 8 would amend the
paragraph to limit the circumstances in which an award may provide
for redundancy pay to circumstances in which an
employee’s employment has been terminated at the initiative of the
employer on the grounds
of operational
requirements . As
is the case with existing paragraph 89A(2)(m), neither new
paragraph 89A(2)(m) nor subsection 89A(6) would operate to allow
the inclusion in awards of provisions which affect
the capacity of an employer to determine the number or identity of
persons whose employment is to be terminated for operational
requirements .

Item 9 - Paragraph
89A(2)(n)

1.12 This item would remove ‘notice of termination’
from the allowable award matters.

Minimum requirements as to notice of termination
at the initiative of the employer are set out in Part VIA of the
Act.

Item 10 - Paragraph
89A(2)(q)

1.13 This
item would remove ‘jury service’ from the
allowable award matters.

Item
1 1 - After paragraph
89A(2)(s)

1.14 This item proposes to amend subsection 89A(2) to insert
new paragraph 89A(2) (sa). New paragraph 89A(2) (sa)
will provide for a
new allowable award matter - ‘bonuses for
outworkers’. The amendment is required because
‘bonuses’ generally are to be deleted as an allowable
award matter (item 2 ), but are to be
retained as an allowable award matter for
outworkers.

Item
1 2 - Paragraph 89A(2)(t)

1.15 This item proposes consequential amendments to paragraph
89A(2)(t) to expressly provide that allowable award
matter concerns pay and conditions for outworkers, other than
bonuses, which are fair and
reasonable in comparison with the pay and conditions specified in a
relevant award or awards for
employees who perform the same kind of work at an employer’s
commercial or business
premises.

1.16 The amendments proposed by items
1 1 and
1 2 are
designed to ensure that outworkers in the clothing industry
who are paid in accordance with payment by results systems do not
lose access to that mode of
remuneration.

Item
13 - At the end of subsection
89A(3)

1.17 This item would amend subsection 89A(3) by providing that
the Commission’s power to make or vary an award
dealing with the matters in subsection 89A(2) is limited to
making minimum rates awards that provide for basic min imum
entitlements. This amendment reinforces the objects of ensuring that awards act as a
safety net of basic minimum wages and conditions of employment to help
address the needs of the low paid, that awards do not provide for
wages and conditions of
employment above the safety net and do not operate as a
disincentive to agreement making.

Item
1 4 -
After subsection 89A(3)

1.18 Proposed new subsection 89A(3A) would clarify
the scope of the allowable award matters set out in subsection
89A(2) by expressly providing that certain matters are not within
the scope of the allowable
matters . However, the range of ‘non-allowable’ matters
is not confined to the matters listed in subsection
89A(3A). The list of
matters set out in proposed new subsection 89A(3A) is simply
intended to provide greater certainty as to the status of the
matters listed in that provision.

1.19 Proposed new paragraph 89A(3A)(a) would provide
that transfers between work locations do not come within the
scope of the allowable award matters. This provision is
intended to remove from the scope
of awards provisions such as those setting out conditions
applicable to transfers or selection
for transfer from one work location to another. It is not
intended to prevent the inclusion of
provisions that permit the transfer of employees to a work location
other than their usual location
where the employer is not able to usefully employ them because of
any strike, breakdown of machinery
or any stoppage of work for any cause for which the employer
cannot reasonably be held responsible.

1.20 Proposed new paragraph 89A(3A)(b) would provide
that matters pertaining to training and education, such as
participation in training activities, leave for training or study
purposes and fees (except in
relation to leave and allowances for trainees and apprentices) do
not come within the scope of the
allowable award matters.

1.21 Proposed new paragraph 89A(3A)(c) would provide
that requirements for the recording of employees’ work
times do not come within the scope of the allowable award
matters. Section

353A
of the Act provides for the making of regulations in relation to
employment records which may include records of
the hours worked by employees.

1.22 Proposed new paragraph 89A(3A)(d) would exclude
accident make up pay from the scope of the allowable award
matters. Minimum standards
applicable to work-related injuries would continue to be
regulated by State or Territory legislation or, in some cases, by
federal legislation.

1.23 Proposed new paragraph
89A(3A)( e )
would exclude from the scope of the allowable award matters dispute
settling procedures that provide for an organisation of employers
or employees to participate in, or represent an
employer or employee in the whole or part of the dispute settling
process but do not allow the employer or the employee the right to
represent their own interests or to
choose a representative other than a particular organisation or
organisations. This limitation is not intended to exclude
organisations from involvement in dispute settling procedures, but rather
to ensure that award-based procedures provide employers and
employees with choice as to
representation.

1.24 Proposed new paragraph
89A(3A)( f )
would provide that transfers from one type of employment to another
type of employment do not come within the scope of the allowable
award matters. ‘Type of employment’ refers to
categories such as full-time employment, casual employment, regular
part-time employment and shift work [see paragraph
89A(2)(r)]. It is
not intended to refer to types of work or duties (as
distinct from types of employment) and would not preclude the inclusion
of award provisions that permit the transfer of employees to
different duties where the
employer is not able to usefully employ them to perform their usual
duties because of any strike, breakdown of
machinery or any stoppage of work for any cause for which the
employer cannot reasonably be held responsible.

1.25 Proposed new paragraph
89A(3A)( g )
would exclude from the scope of the allowable award matters the
number or proportion of employees that an employer may employ in
a particular type of employment or
classification. This means, for
example, that an award is not permitted to include
provisions that impose, or would have the effect of imposing, a
limit on the number of persons that
may be employed in a particular type of employment or
classification, whether by imposing a
quota on that employment type or classification or requiring the
number of
persons (or minimum or maximum number of persons) in a particular
type of employment or classification to be
determined by reference to the number of persons employed in
another type of employment or
classification.

1.26 Proposed new paragraph
89A(3A)( h )
would exclude from the scope of the allowable award matters
prohibitions (whether direct or indirect) on an employer employing
persons in a particular type of
employment or classification. This limitation
is not intended to preclude an award from including
provisions that stipulate that particular competencies,
qualifications or licences must be held
in order to perform certain duties.

1.27 Proposed new paragraph
89A(3A)( i )
would exclude from the scope of the allowable award matters
provisions setting maximum or minimum hours of work for regular
part-time employees. This
paragraph would have the same effect as existing paragraph
89A(4)(b).

Item
1 5 -
Subsection 89A(4)

1.28 This item would repeal subsection 89A(4), which
provides that the Commission’s powers to make an award in
relation to the matters covered by paragraph (2)(r) does not
include the power to limit the
number or proportion of employees that an employer may employ in
a particular type of employment or to set minimum
or maximum hours of work for regular part-time employees. These qualifications on the allowable award
matters are to remain in place but would be covered by new
paragraphs 89A(3A)( g ),
89A(3A)( h )
and 89A(3A)( i ).

Item
1 6 -
Subsection 89A(5)

1.29 This amendment is consequential upon the repeal
of subsection 89A(4) [ i tem
1 5 of
this

Schedule]. It replaces a
reference to paragraph 89A(4)(b) with a reference to the
corresponding new paragraph
89A(3A)( i ).

1.30 This item also includes a note to insert
a sub section heading “Other provisions that the Commission may
include in an award” above subsection
89A(5). This will
be the heading for subsections 89A(5),
89A(6) and proposed
subsection 89A(6A).

Item
17 - Subsection 89A(6)

1.31 This item would amend subsection 89A(6) to limit
the scope of ‘incidental’ provisions that may be
included in an award to those provisions that are essential for the
purpose of making particular clauses relating to allowable matters
operate in a practical way. That is, to be included in an
award under this subsection, a provision must be both incidental to
an allowable matter and essential to the operation of a particular
award clause. This provision would allow the
Commission to includ e in awards provisions that are required to ensure the
practical operation of clauses dealing with allowable matters, but
would also ensure the practical operation
of matters is not expanded, thereby recognising that awards should
act as a safety net of basic minimum wages and conditions of
employment.

1.1 12. These
items propose the repeal of existing subsections 136(8B), (9) and
(10), 138(2) and 138(6), and section 140, and also remove
references in subsections 137(1), 138(1), 138(5) and 139 to
existing secret ballot provisions which it is proposed be
repealed. The amendments are consequential to the limitations
on the Commissions power to order ballots be held proposed in items
4 to 7.

Item
18 - After subsection 89A(6)

1.32 This item would insert new subsection 89A(6A) to clarify
that subsection 89A(2) does not preclude awards from
including machinery provisions such as definitions,
arrangements, commencement date, term
and parties bound.

Item
1 9 -
After subsection 89A(8)

1.33 This
item would insert new subsection 89A(8A) to make it
clear that subsection 89A(2) does
not preclude awards from including provisions that are allowed by
subsection 113A
and subsection 143(1C) of
the Act, such as enterprise flexibility and facilitative
provisions .

Item
20 - Subsection 113A(2)

1.34 This
item repeals subsection 113A(2) which will
no longer be necessary because of the
amendment proposed in
Item 19 which would have the effect of ensuring that the capacity
of the Commission to include enterprise flexibility provisions in
an award is not limited by subsection
89A(2).

Item 21 - Subsection
120A(4)

1.35 This
item would amend subsection 120A(4) so that exceptional matters
orders may only be made by a Full
Bench of the Commission . At present, a single Commissioner may
make an exceptional matters order that relates to a single
business.

1.1 Item
17 - After section 170MJ

13. This
item proposes to insert two new sections into the Act, as
follows.

New
section 170MJA - Initiating party who is employee may appoint
agent

Part
2 - Application, transitional and savings
provisions

Item
22 - Application of
Part 1

1.36 This
item proposes that
the amendments made by items 1 to 21 of this
Schedule will apply in relation to an industrial dispute that
the Commission began to deal with before the c ommencement of
th ose
items , or
begins to deal with after commencement of
these items .

Item
23 - Transitional provision - review of
awards

1.37 This
item requires the Commission to review all awards within a period
of 12 months to ascertain whether they contain provisions that may no longer be included as
allowable award matters due to the amendments to
section 89A made
by Part
1 of this Schedule. After considering appropriate alternatives, the
Commission may vary an award to r emove those provisions no longer allowable under
section 89A.

1.38 This
item provides that the Commission may review awards for the
purposes of this Bill at the same time as it reviews awards for
other purposes.

1.39 T his
item also provides tha t at the
end of 12 months after the commencement of this
Schedule , any
provision in an award which is no longer an allowable award matter
due to
the amendments in this Schedule, w ill cease to have
effect .

1.40 Further, the item provides that
t he Commission may vary any award to
remove any provision which has ceased to have
effect because the end of the transitional period has been
reached.

14. New
section 170MJA would provide that an employee or employees who wish
to initiate a bargaining period under section 170MI to negotiate an
agreement, or who wish to give an employer notice of intention to
take industrial action under section 170MO, but want to remain
anonymous from their employer, may appoint an agent to initiate the
bargaining period or to issue the notice on their behalf.
This provision is consistent with proposed subsection 170NBB(4),
which would allow an employee or employees to appoint an agent to
represent them in relation to applications for a protected action
ballot.

15. The new
section would also specify that where an agent has been appointed
to initiate a bargaining period under section 170MI, the written
notice that would be required to be given to the Commission under
subsection 170MI(2) must include the names of the employee or
employees who appointed the agent.

New
section 170MJB - Identity of person who has appointed agent not to
be disclosed

16. New
subsection 170MJB(1) would further protect the identity of
employees who appoint agents under proposed section 170MJA by
prohibiting the Commission from disclosing information that would
identify persons who have appointed an agent. However, the
Commission will be able to disclose information that would identify
persons who have appointed an agent if the disclosure is permitted
by any Act or by regulations made under an Act, or if the
disclosure has been authorised by the person whose identity would
otherwise be protected [subsection
170MJB(2)].

17. Under
proposed subsection 170MJB(3), it would be an offence for any
person to disclose information that would identify persons who have
appointed a bargaining agent under proposed section 170MJA. The
proposed maximum penalty for this offence is 6 months
imprisonment.

18. Proposed
exceptions to this prohibition on disclosure are: if the disclosure
is permitted by any Act or by regulations made under an Act, if the
disclosure has been authorised by the person whose identity would
otherwise be protected, or if the disclosure is by a Registry
official or authorised ballot agent in the course of performing
their functions or duties [subsection
170MJB(4)].

19. For the
purposes of determining the burden of proof in proceedings relating
to offences under proposed subsection 170MJB(3), the exceptions set
out in proposed subsection 170MJB(4) would be part of the
description of the offence. This addresses the requirements of the
Criminal Code [subsection 170MJB(5)].

20.
Definitions of the terms protected information and Registry
official, that are used in new section 170MJB, are contained in
subsection 170MJB(6).

Item
18 - At the end of subsection
170ML(7)

21. This
item proposes to amend existing subsection 170ML(7) by inserting a
reference to proposed Division 8A. This amendment would
ensure that industrial action would only be protected if the new
provisions regarding protected action ballots in proposed Division
8A have been complied with. The requirement for protected
action ballots would not apply to industrial action taken in
response to a lockout - see proposed section 170MQ [item
21].

New item 18A - Subsection
170MO(2)

New item 18B - After subsection
170MO(2)

This
amendment is consequential upon a change to proposed subsection
170NBCI(5) [see Amendment No. 29], which would allow the
Commission, when ordering a protected action ballot, to extend the
period of written notice required prior to taking protected
industrial action following a protected action ballot from the
current 3 working days to up to 7 working
days.

The
amendment will ensure that the notice requirements in section 170MO
reflect the possibility that more than 3 working days’ notice
may be required in appropriate exceptional circumstances, by
providing for the required written notice to be given
(ie, 3 working days written notice or such longer period, of up to
7 days, ordered by the Commission when issuing a protected action
ballot order).

Item
19 - Subsections 170MO(5) and
(6)

22. This
item would amend the requirements for a notice of intended
industrial action or lockout.

23. The
amendments proposed to subsection (5) are designed to ensure that
notices contain adequate detail of intended action. A notice
would be required to provide details of:

· the
precise nature and form of the intended action;

· the
day or days upon which it is proposed that the action will take
place; and

· the
duration of the intended action.

24.
Subsection 170MO(6) currently allows the written notice of
industrial action required under subsection 170MO(2) to be given
before the commencement of a bargaining period. As a result
of the proposed protected action ballot arrangements, it will no
longer be possible for notice of such action to be given until the
action had been authorised by a ballot. The proposed
replacement subsection 170MO(6) will provide that notice of
proposed action cannot be given until a ballot result has been
declared.

25. A
protected action ballot would not be required for an employer to
undertake a protected action lockout of employees, nor would a
ballot be required for a union and employees to respond to such a
lockout. In this situation, notice by an employer or by a union or
employees could be given once the bargaining period has
commenced.

This
amendment would replace item 19 of the Bill as introduced with a
new item 19.

Item
19 of the Bill as introduced would replace the existing
requirements for the content and timing of notice of intention to
take protected action in subsections 170MO(5) and
(6).

This
amendment would retain the proposed changes to subsection (6)
(which relates to when notice may be given), but not those to
subsection (5) (which proposed detailed notice requirements).
The effect of this amendment is that the content of the written
notice required to proceed protected industrial action will remain
as it is in the Act; that is, notice must address the nature of the
proposed action and the day on which it will
begin .

Item
20 - Subsections 170MP(1) and (2)

26. This
item proposes to repeal existing paragraphs 170MP(1)(b) and (2)(b),
which provide that industrial action is not protected unless the
organisation or employees taking action have genuinely tried to
reach agreement. These paragraphs will no longer be
necessary, as the issue of whether a union or employees proposing
to take industrial action have been genuinely trying to reach an
agreement will be considered by the Commission when it is
determining an application for a protected action ballot under
proposed section 170NBCF [item 23].

27.
Subsection 170MP(3) will continue to ensure that an employer is
required to genuinely try and reach agreement before taking
protected action.

Item
21 - Section 170MQ

28. This
item proposes the repeal existing section 170MQ, and substitution
of a new section.

New
section 170MQ - Industrial action must be authorised by
ballot

29. Existing
section 170MQ provides that where the Commission has ordered a
protected action ballot under subsections 135(2) or (2B), protected
industrial action cannot be taken unless the ballot has been held
and the action approved by a majority of votes cast. This section
would no longer be required, as subsections 135(2) and (2B) are to
be repealed [see items 4 and 5].

30. The new
section would provide that industrial action taken by an
organisation of employees, its members or employees, or by
employees who are negotiating parties, would not be protected
action unless the action is taken in response to a lockout of
employees, or the action has been authorised by a protected action
ballot conducted in accordance with new Division 8A [to be inserted
by item 23].

Amendment No. 3 would amend section 170MW to
reflect the changes to the requirements for notice of intention to
take industrial action being made by other amendments (see
Amendment Nos. 1, 4-7 and 29) to allow the Commission to extend the
requirement for three working day’s written notice to up to 7
working days in exceptional circumstances.

Proposed new subsection 170MW(11) would allow
the Commission, when suspending a bargaining period, to order, in
relation to any outstanding industrial action that could be taken
after the suspension had ended (by reason of proposed new section
170MWE - to be inserted by item 22 of the Bill), that written
notice of up to 7 working days be given instead of the usual 3
working days.

Item
22 - After section 170MW

New
section 170MWE - Industrial action without further protected action
ballot after end of suspension of bargaining
period

31.
This section would regulate how protected action by unions or
employees may be recommenced after the suspension of a bargaining
period has ended. The section would only apply in relation to
action authorised by a protected action ballot, which either had
not commenced or had not ended before the bargaining period was
suspended.

32.
The section proposes that a union or person authorised to organise
or engage in protected action by a ballot could, following the end
of a suspension period, engage in action endorsed by that ballot
without the need to hold another protected action
ballot.

33.
As the dates specified in the ballot as to when action is proposed
to begin or be taken may have passed during the period of
suspension, the section would also provide that the period of
suspension, including any such dates, is to be ignored in
determining when protected action may be taken (subsection
170MWE(2)). This provision must be considered in conjunction
with proposed subsection 170MWE(4) which would make it clear that
the details of proposed action in the ballot may only be ignored in
relation to such dates; any action taken following the end of a
suspension period would still be required to be consistent with the
type and duration of action specifically endorsed in the
ballot.

34.
In addition, parties wishing to recommence action following the end
of a period of suspension would be required to give 3 working
days’ notice of their intention to take action, detailing the
nature, intended days and intended duration of the action,
consistent with the requirements of existing subsection
170ML(2).

These amendments relate to the proposed change
to the notice period requirements, being made by other amendments
to allow the Commission to extend the requirement for three working
day’s written notice to up to 7 working days in exceptional
circumstances.

Amendment Nos. 4 and 5 would amend proposed
section 170WE to ensure that the requirement to give written notice
after suspension of a bargaining period ends reflects the changes
to be made to section 170MW by Amendment No.
3.

The
possibility that more than 3 working days’ notice may be
required in appropriate exceptional circumstances (by reason of an
order by the Commission when suspending a bargaining period under
section 170MW) is to be addressed by providing for the
required written notice to be
given.

Amendment Nos. 6 and 7 make consequential
amendments to references to the notice requirement in the two
examples provided to explain the operation of section
170MWE.

Item
23 - After Division 8 of Part
VIB

35. This
item proposes to insert a new Division into the Act, relating to
secret ballots for protected action, as
follows.

New
Division 8A - Secret ballots on proposed protected
action

New
Subdivision A - General

New
section 170NBA - Object of Division and overview of
Division

36. This
section would establish the object of the new Division: to ensure
that before employees and organisations of employees take
industrial action, the action is authorised by the employees
concerned in a fair and democratic ballot. (A protected
action ballot would not be required in the case of action taken in
response to a lockout by the
employer.)

Amendment No. 8 would amend the object of
proposed new Division 8A of the Act (the Division that would
provide for protected action ballots).

The
revised object is designed to highlight the focus of new Division
8A on providing access to employees to a process of free and
democratic secret ballots to determine whether protected industrial
action should be taken. The provisions are designed to be
facilitative (ie to provide the means for accessing protected
action) not prohibitive (ie to outline the circumstances in which
such action is not available).

The changes
proposed to subsection 170NBA(1) as introduced will highlight the
facilitative nature of the protected action ballot
provisions

New
section 170NBAA - Definitions

37. New
section 170NBAA defines the terms used in proposed Division 8A.

The Bill as
introduced includes a requirement that each application nominate a
proposed ballot agent. That requirement, contained in
proposed section 170NBBA of the Bill, is to be removed (see
Amendment No. 14). Amendment Nos. 9-13 would make changes to
the definitions in proposed section 170NBAA of the Bill
consequential upon this change.

New
Subdivision B - Application for order for protected action ballot
to be held

New
section 170NBB - Who may apply for a ballot order,
etc.

38. Under
new subsection 170NBB(1) an application for a protected action
ballot could only be made once a bargaining period has
commenced.

39. Who
could make the application would depend on who initiated the
bargaining period under section 170MI. Under new subsection
170NBB(2), if the bargaining period was initiated by a union, then
that union could apply to the Commission for a ballot order.
If the bargaining period was initiated by an employee or employees
seeking a non-union agreement, then any employee who would be
subject to the proposed agreement, or such employees acting
jointly, could apply to the Commission for a ballot
order.

40. To
ensure that a sufficient level of employee support exists to
justify the holding of a ballot in relation to employees seeking a
non-union agreement, subsection 170NBB(3) proposes that an employee
or employees acting jointly could not make an application to the
Commission for a ballot order unless the application has the
support of a prescribed number of employees who would be subject to
the proposed agreement. [The equivalent requirement in the
case of ballot applications by a union, is that the union is to be
required to provide evidence that the application has been
authorised by or through the union’s committee of management
(see proposed section 170NBBB).]

41. The term
‘prescribed number’ is defined in proposed section
170NBAA. The ‘prescribed number’ would vary
depending on the size of the workplace. If there are less
than 80 employees who would be subject to the proposed agreement,
then at least 4 of the employees would be required to support the
ballot application. If there are between 80 and 5000
employees who would be subject to the proposed agreement, at least
5% of the employees would be required to support the ballot
application. If there are more than 5000 employees who would
be subject to the proposed agreement, then at least 250 of the
employees would be required to support the ballot
application.

42. New
subsection 170NBB(4) would provide that where an employee or
employees have initiated a bargaining period for a non-union
agreement and industrial action is proposed, an employee or
employees acting jointly may appoint an agent to represent them in
making the ballot application and for all purposes connected with
the ballot application. This is intended to enable employees
making an application to remain
anonymous.

New
section 170NBBA - Contents of
application

43. This new
section proposes mandatory requirements for a ballot application
under section 170NBB. Applications would be required to
include the following information:

· the
bargaining period to which the proposed ballot
relates;

· the
types of employees who are to be balloted [for example their
occupations, work groups and locations, similarly required in
existing paragraph 170MJ(b)];

· the
names of the applicant, applicants or applicant’s
agent;

· the
proposed timetable for the ballot;

· the
name of the ballot agent nominated by the applicant to conduct the
ballot;

· the
proposed voting method for the ballot;

· the
question or questions to be put to the ballot,
including:

-
the precise nature and form of the proposed industrial action to be
voted on;

-
the day or days on which it is intended the proposed action would
take place;

-
the duration of the proposed industrial action;
and

· the
relevant employers name, addresses, telephone and fax
numbers.

Amendment No. 14 proposes to amend proposed
section 170NBBA of the Bill by simplifying the requirements for an
application for a protected action ballot
order.

New
subsection (1) sets out the matters that must be included in an
application:

· the question or questions to be put to
the ballot; and

· details of the types of employees to be
balloted.

The
level of detail that the Bill as introduced required in the ballot
question is to be reduced to reflect the current notice
requirements in section. As a result, ballot questions will
be required to address the nature of the proposed industrial action
and the day when it is to begin, rather than the more detailed
specifications in the Bill as introduced.

Rather than requiring an application to nominate
a ballot agent, subsection (2) would allow an application to
include a nomination, although the question of the ballot agent is
ultimately for the Commission to determine.

In
addition to the matters listed in proposed subsections (1) and (2),
an application must address any matters required by the Rules of
the Commission (proposed subsection (3) would give the President of
the Commission the power to make such rules which, by reason of
section 48 of the Act would be disallowable instruments for the
purposes of the Acts Interpretation Act
1901 ).

New
section 170NBBB - Material to accompany
application

44. New
section 170NBBB would require the applicant to provide certain
material to the Commission with the ballot application,
including:

· a
copy of the notice initiating the bargaining period and the
particulars accompanying that notice;

· a
declaration by the applicant that the industrial action to which
the application relates is not for the purpose of advancing or
supporting claims to include an objectionable provision (as defined
in subsection 298Z(5) of the Act);

· if
the applicant is an organisation of employees, a written notice
showing that the application has been duly authorised in accordance
with the organisation’s rules; and

· if
the applicant is represented by an agent, a document containing the
name of the employee applicant or
applicants.

45. Under
new subsection 170NBBB(6), it will be an offence to make a
statement in the declaration required by new section 170NBBB,
reckless as to whether it is false or misleading. The proposed
maximum penalty for an offence against subsection 170NBBB(6) is 20
penalty units.

New
section 170NBBC - Notice of
application

46. This new
section would require the applicant to give a copy of the
application to the relevant employer and the ballot agent nominated
in the application within 24 hours of the application being lodged
with the Commission. However, the applicant would not be
required to give these parties copies of the supporting material
that must be given to the Commission with the application under
proposed section 170NBBB, such as the document containing the names
of applicant employees where the applicants are represented by an
agent.

Like Amendment Nos.
9-13, Amendment No. 15 is consequential upon removing the
requirement that an application for a ballot order nominate a
ballot agent to conduct it.

Amendment No.
15 would replace proposed section 170NBBC. As a result of
this amendment, an applicant for a ballot order would be required
to give notice of an application within 24 hours to a proposed
ballot agent only if one was nominated in the application.
(As with section 170NBBC as introduced, notice to the employer is
also required.)

New
section 170NBBD - Joint
applications

47. This
section proposes that where a bargaining period for the proposed
agreement was initiated by an employee seeking a non-union
agreement, two or more employees who would be subject to the
proposed agreement could make a ballot application jointly
[subsection 170NBBD(1)].

48. If a
joint application was made, another employee could, with the
consent of the other applicants, add their name to the application,
and an applicant could withdraw their name from the application.
Either adding or withdrawing names may be done at any time before
the application is determined [subsections 170NBBD(2) and
(3)]. Preventing applicants withdrawing their name from an
application after the determination of the application is relevant
to the fixing of liability for the cost of conducting a ballot
under proposed section 170NBF (see
below).

49. New
subsection 170NBBD(4) would allow the President of the Commission
to establish rules regarding how the provisions of the Act relating
to ballot orders apply to joint applicants. Such rules would
be Rules of the Commission, and therefore disallowable instruments
and statutory rules [subsection
170NBBD(5)].

New
Subdivision C - Determination of application and order for ballot
to be held

New
section 170NBC - Commission to notify parties of
application

50. To
assist in ensuring the speedy determination of applications, this
new section would require the Commission to notify all parties of
the procedure for dealing with an application for a ballot order,
as soon as practicable after an application is lodged. This
would include notifying the parties that they may make submissions
to the Commission about the application, whether submissions should
be made orally or in writing, and the cut off time for making
submissions.

This
item would replace proposed section 170NBC, which requires the
Commission to advise parties about the procedure to be followed in
dealing with an application.

As a result
of the amendment, such notification will not be mandatory.
Rather, the Commission will have a discretion to notify parties of
the procedure to be followed where doing so would not delay, and
may expedite, the determination of the
application .

New
section 170NBCA - Commission to act quickly in relation to
application etc.

51. New
subsection 170NBCA(1) would provide that in exercising its powers
under Division 8A, the Commission must act as quickly as
practicable and would be required, as far as possible, to determine
an application for a ballot order within 4 working days of the
application being made.

52.
Paragraph 111(1)(g) of the Act is not to apply to ballot
proceedings under Division 8A [subsection 170NBCA(2)].
Paragraph 111(1)(g) allows the Commission to dismiss or to refrain
from hearing or determining a dispute on various grounds, including
that the dispute is trivial, is being dealt with by a State
industrial authority, that a party to the dispute is engaging in
conduct that is hindering the settlement of the dispute, or has
breached an award, agreement or order of the Commission, etc.
Note, however, that under proposed subsection 170NBCB(2) the
Commission would be able to refrain from considering a submission
if it was satisfied that the submission was vexatious, frivolous,
misconceived or lacking in substance.

The
Bill as introduced requires the Commission, as far as possible, to
deal with applications for ballot orders and related orders within
4 working days (see proposed section
170NBCA).

The combined
effect of these amendments would be to expedite the process of
dealing with ballot applications from 4 days to two days, as far as
this is reasonably possible.

This
is a technical amendment.

Amendment No.
19 would insert a note after proposed subsection 170NBCA(1) of the
Bill to make it clear that, in exercising its powers under new
Division 8A, the general procedural obligations on the Commission
(such as the requirement to act according to equity, good
conscience and the substantial merits of the case) are
applicable.

These amendments are designed to ensure that
those with a relevant interest in an application have a reasonable
opportunity to be heard.

Amendment No.
20 would amend proposed section 170NBCA to ensure that, despite the
reduced timeframe for dealing with ballot applications, the
Commission does not deal with an application for a ballot order
until those with a relevant interest have had a reasonable
opportunity to make submissions in relation
to the application. (The indicative timeframe for dealing
with applications would be a factor in determining what was
reasonable in the circumstances.)

New section 170NBCB - Parties and relevant employees may make
submissions and apply for
directions

53. Under
new subsection 170NBCB(1), a party to a ballot application (the
applicant, the employer or the ballot agent), a union member (where
the applicant is a union) or employee (where the applicant is an
employee or employees) who would be subject to the proposed
agreement, will be entitled to make submissions to the Commission
about the application, or about the conduct of the protected action
ballot. Also, any of these persons will be entitled to apply
to the Commission for directions about the application or the
conduct of the ballot.

54. New
subsection 170NBCB(2) would allow the Commission to refuse to
consider a submission if the Commission was satisfied that the
submission was vexatious, frivolous, misconceived or lacking in
substance.

These amendments are designed to ensure that
those with a relevant interest in an application have a reasonable
opportunity to be heard.

Amendment 22 would amend proposed section
170NBCB to include references to ballot agents among those who may
be heard in relation to a ballot application (proposed new
subsection (1A)) or an application for directions in relation to
the conduct of a ballot (proposed new subsection
(1B)).

Amendment No.
21 would insert a note after proposed subsection 170NBCB(1) of the
Bill to advise readers of the applicability of the
Commission’s power to summon witnesses to help in the
determination of an application for a ballot order or related
directions.

New
section 170NBCC - Commission may give
directions

55. This new
section would empower the Commission to make directions regarding
an application for a ballot order or about any aspect of the
conduct of a protected action ballot.

This is a
technical amendment to section 170NBCC to make clear that
directions issued by the Commission in connection with a protected
action ballot are orders of the Commission.

Amendment No. 24 proposes to amend section
170NBCC (which relates to the Commission’s power to issue
directions in relation to the conduct of protected action ballots),
to place emphasis on the need for ballots to be conducted
expeditiously once ordered by the
Commission.

Proposed new subsection 170NBCC(2) would
expressly authorise the Commission to issue directions to ensure
that ballots are conducted expeditiously.

Proposed new
subsection 170NBCC(3) would require the Commission, in considering
whether to issue such directions, to have regard to the
desirability of the ballot results being available to the parties
within 10 days of a ballot order being made

56. Proposed
section 170NBCE seeks to ensure that any disruption that may be
caused to an employer’s operations by the conduct of more
than one protected action ballot proposed to be held within a short
space of time can be minimised (especially, for example, attendance
ballots).

57. The
Commission would be specifically empowered to hear and determine at
the same time applications that concerned the same employer or that
concerned the same place of work where different employers were
involved (for example a construction site). For example, if
an order had been made concerning a particular employer or place of
work and a further application was made concerning that employer or
place of work, the Commission would be able to determine that the
later ballot be held at the same time as the first ordered ballot,
or it could vary the order for the first ordered ballot to require
both ballots be held at the same
time.

Like
Amendment No. 24, these amendments to proposed section 170NBCE
(which relates to Commission procedure in the case of multiple
ballot applications) are designed to ensure that the Commission
deals with ballot applications quickly.

Proposed new paragraph 170NBCE(1)(c) would
provide that multiple applications should only be heard together if
the Commission considers that doing so would not cause unreasonable
delay to the determination of any of the
applications .

Similarly,
proposed new paragraph 170NBCE(2)(d) would ensure that the
Commission’s power to order that more than one ballot to be
held at the same time is exercised in light of the need to avoid
unreasonable delay in the conduct of any of the
ballots.

New
section 170NBCF - Application not to be granted unless certain
conditions are met

58. New
subsection 170NBCF(1) sets out the matters that would be required
to be established to the Commission’s satisfaction before the
Commission could grant an application for a ballot order. The
matters are:

· a
bargaining period has been initiated and has
commenced;

· the
application was accompanied by a declaration by the applicant that
the proposed industrial action is not for the purposes of
supporting or advancing claims to include an objectionable
provision in an agreement (new subsection 170NBBB(4)
above);

· if
the application is by one or more employees, that the application
is supported by at least the prescribed number of employees (new
subsection 170NBB(3) above);

· the
other parties have received a copy of the application as required
by new section 170NBBC above;

· the
nominal expiry dates of all certified agreements, old IR agreements
and section 170MX awards applying to the union members or employees
who would be eligible to vote in the ballot have
passed;

· the
manner in which the ballot would be conducted will ensure the
secrecy and security of employees’ votes, and would result in
a fair and democratic ballot to the extent that the applicant can
guarantee this (this will normally require that the ballot be
conducted as a postal vote);

· the
proposed ballot timetable is appropriate (under proposed section
170NBCJ the Commission may develop guidelines which would assist in
determining this issue);

· the
question or questions to be put to employees in the ballot meet the
requirements of new paragraph 170NBBA(g), that is, the questions
must state the precise nature and form of the proposed industrial
action, the day or days on which it is proposed that the action
will take place and the duration of the proposed industrial
action;

· the
ballot agent nominated in the application will conduct the ballot
in accordance with the requirements of Division 8A and with any
orders or directions made by the Commission;

· if
the ballot agent nominated in the application is not the Australian
Electoral Commission, that the ballot agent has consented to
conduct the ballot;

· if a
party has submitted to the Commission that the applicant has not
genuinely tried to reach agreement with the employer, that there
are not sufficient grounds for accepting this submission;
and

· any
other matter prescribed by the regulations.

59. If the
Commission were to be satisfied of all these matters except for
those dealing with the proposed ballot method, timetable or ballot
agent, the Commission would be required to give the applicant an
opportunity to amend the application in respect of these
matters. (The Commission has a general discretion to allow a
party to vary any other element of its
application.)

60. To help ensure the accuracy
of a ballot roll and the anonymity of Australian Workplace
Agreement employees and union members, proposed subsection
170NBCF(3) would require the Commission to consider whether it
should make an order under new section 170NBCK before it grants an
application. New section 170NBCK would allow the Commission
to order the applicant or the employer of the relevant employees to
provide the Commission with a list of employees who would be
eligible to vote in the proposed ballot, and any other information
that the Commission reasonably requires to assist in compiling the
roll of voters for the proposed
ballot.

61. New
subsection 170NBCF(4) would require the Commission to grant an
application if it was satisfied that all the matters in subsection
(1) have been complied with, and the Commission has considered the
matter in subsection (3).

62. New
subsection 170NBCF(5) would provide that even if subsection (4)
would otherwise require the Commission to grant an application, the
Commission is nonetheless able to refuse to grant the application
if it is satisfied that the applicant, or an employee or union
member who would be eligible to vote in the proposed ballot, has at
any time contravened a provision of Division 8A or an order or
direction made by the Commission under Division
8A.

Amendment No. 27 would replace section
170NBCF, which sets out the circumstances in which an application
for a ballot is to be granted.

New section 170NBCF would significantly
simplify the proposed prerequisites for the Commission granting an
application for a ballot order. As a result of this
amendment, the prerequisites would
be:

· genuine bargaining has occurred, and is
continuing to occur, during the relevant bargaining period;
and

· the nominal expiry dates of all
certified agreements, old IR agreements and section 170MX awards
applying to the union members or employees who would be eligible to
vote in the ballot have passed.

Nonetheless, it will be open to the
Commission to refuse an application if granting the application
would be inconsistent with the objects of the protected action
ballots provisions (proposed new Division 8A), or if it is
satisfied that the applicant, or an employee or union member who
would be eligible to vote in the proposed ballot, has at any time
contravened a provision of Division 8A or an order or direction
made by the Commission under that
Division.

New
section 170NBCH - Grant of application - order for ballot to be
held

63. This new
section would provide that if the Commission grants an application
for a ballot order, the Commission would be required to order the
applicant to hold a ballot in accordance with Division
8A.

New
section 170NBCI - Matters to be included in
order

64. Proposed
subsection 170NBCI(1) sets out the information that would be
required to be contained in a ballot order made by the
Commission.

65. An order
would be required to specify the ballot be conducted by postal
vote, unless another method was proposed in the application for the
ballot order and the Commission is satisfied that this other method
would ensure the secrecy and security of votes and a fair and
democratic ballot, and that, if the ballot was to be conducted by
attendance vote, that the voting could take place in work breaks or
otherwise outside hours or employment [subsection
170NBCI(2)].

66. If a ballot is to be
conducted by an attendance vote, the ballot order would be required
to specify that voting is to take place during breaks or otherwise
outside work hours [subsection
170NBCI(3)].

This amendment
would:

· ensure that the requirements for
matters that need to be addressed in a ballot order under proposed
section 170NBCI reflect other changes being made by these
amendments;

· allow greater flexibility to the
Commission in deciding the form of the ballot (the Bill currently
has a strong preference in favour of postal ballots), while still
requiring the Commission to consider the benefits of a postal
ballot.

The wording of proposed paragraph
170NBCI(1)(e) is to be revised slightly to reflect changes proposed
elsewhere in relation to ballot
agents.

The amendments to proposed paragraph
170NBCI(1)(f) would ensure that the questions to be put in a
protected action ballot address the nature of the proposed
industrial action and the day when it is to begin, rather than the
more detailed specifications in the Bill as
introduced.

New subsection (2) would ensure that
the Commission was satisfied about the adequacy of any voting
method it ordered, and subsection (2A) would require
the Commission to consider the benefits of
a postal ballot in determining what form of ballot should be
ordered.

New
section 170NBCJ - Guidelines for ballot
timetables

67. To
assist the Commission in speedily determining applications, the
President of the Commission would be empowered to develop
guidelines concerning timetables for the conduct of ballots under
Division 8A. The President may consult with the Australian
Electoral Commission and other ballot agents in developing any
guidelines under this section.

New
section 170NBCK - Power of Commission to require information
relevant to roll of voters

68. The only
employees who would be eligible to vote in protected action ballots
are those who would be subject to the proposed agreement who are
not party to an Australian Workplace Agreement whose nominal expiry
date has not passed and, in the case of union initiated ballots,
are members of the union that is the applicant for the order.
To determine whether a particular person is eligible to vote in a
ballot would frequently require the Commission (or the authorised
ballot agent) to obtain information from the employer and the
applicant. New subsection 170NBCK(1) would allow the
Commission to order the applicant or the employer of the employees
(or both) to provide the Commission with a list of employees who
might be eligible to vote in a proposed ballot, and any other
information that the Commission reasonably requires to assist in
compiling the roll of voters for the proposed ballot.

69. The
Commission would be able to require this information to be provided
either to the Commission or to the authorised ballot agent and
could require it be provided in whatever form the Commission thinks
is appropriate [subsections 170NBCK(2) and
(3)].

New
section 170NBCL - Roll to be compiled by Commission or ballot
agent

70. This new
section would provide for the compilation of the roll of voters by
the Commission or, alternatively, by authorised ballot
agent.

New
section 170NBCM - Eligibi lity
to be included on the roll

71. New
subsection 170NBCM(1) would establish that a person is only
eligible to vote in a protected action ballot if the
person:

· was
employed by the relevant employer on the day the ballot order was
made; and

· would be subject to the proposed agreement in
respect of which the relevant bargaining period was
initiated.

72.
Additionally, if the applicant for the ballot order was an
organisation of employees, the person would be required to have
been a member of the organisation on the day the ballot order was
made by the Commission.

73. Further, under new
subsection (2), a person whose employment is subject to an
Australian Workplace Agreement whose nominal expiry date has not
passed would not be eligible to vote in a ballot, even if the
person meets the other requirements for eligibility in subsection
(1).

New
section 170NBCN - Adding or removing names from the
roll

74. Under
new subsection 170NBCN(1), the ballot agent would be required to
add a persons name to the roll of voters for a ballot at any time
before voting in the ballot is finished, if the person requests
that their name be added to the roll, and the ballot agent is
satisfied that the person is eligible to be included on the roll of
voters.

75. In
addition, a person is to be able to apply to the Commission for a
declaration that they are eligible to be included on the roll of
voters for a ballot. If the Commission is satisfied that the
person is eligible to be included on the roll of voters, and voting
in the ballot has not finished, the Commission would be required to
make the declaration sought, and direct the ballot agent to include
the person’s name on the roll of voters for the
ballot.

76. A
process for removing a person’s name from the roll of voters
is proposed in subsection 170NBCN(3). A party to a ballot
order, or a person whose name is on the roll of voters for the
ballot, is to be able to apply to the Commission for a declaration
that a person whose name is on the roll of voters is not eligible
to be included on the roll. If, in the case of a postal
ballot, voting had not yet finished, or in the case of any other
type of ballot, voting had not yet started, and the Commission was
satisfied that the person was not eligible to be included on the
roll of voters, the Commission would be required to make the
declaration sought and direct the ballot agent to remove the
persons name from the roll of voters.

77. If a
person’s name was removed from the roll as outlined above and
a postal ballot had already commenced and the person had cast a
vote, the ballot agent would be required to take all reasonable
steps to ensure that persons vote was not counted [section
170NBCN(4)].

New
section 170NBCO - Variation of
order

78. New
subsection 170NBCO(1) would allow an applicant for a ballot order
to apply to the Commission, at any time before the expiry of the
ballot order, to have the ballot order varied; for example to deal
with unanticipated circumstances.

79. New
subsection 170NBCO(2) would allow the authorised ballot agent under
a ballot order to apply to the Commission, at any time before
voting under the ballot has finished, to have the voting method or
timetable for the ballot specified in the ballot order
varied. This would enable the ballot agent to request an
alteration in the timetable if, for example, it encounters
difficulties in compiling the roll of voters that would prevent it
completing the ballot within the ordered
timeframe.

New
section 170NBCP - Expiry and revocation of
order

80. New
section 170NBCP would provide that where a ballot has not been held
within the period specified in the ballot order, the order expires
at the end of that period. It would be open for an applicant
for a ballot order to apply to the Commission to have the order
revoked at any time before the order expires; for example, if the
matters at issue are resolved before the ballot is conducted.
If such an application were made, the Commission would be required
to revoke the order.

New
section 170NBCQ - Complia nce
with orders and directions

81. This new
section would provide that if the Commission was to make an order
or direction under Division 8A expressed to apply to a person or an
organisation of employees, that person or organisation must comply
with the order or direction. (A ballot order would only apply
to the applicant, although separate orders and directions could be
made which would apply to other parties.)

New
section 170NBCR - Commission to notify
parties

82. This new
section would require the Commission, as soon as practicable after
it makes a ballot order, to ensure that a copy of that order is
given to each party to the application (the applicant, employer and
ballot agent).

New
Subdivision D - Conduct and results of protected action
ballot

New
section 170NBD - Conduct of
ballot

83. This new
section would provide that a ballot will not be a protected action
ballot unless it is conducted by the authorised ballot agent (this
term is defined in proposed section
170NBAA).

84. The
effect of this section is that a ballot would be required to be
conducted by the ballot agent authorised by the Commission in the
ballot order. If someone else conducted the ballot, then it
would not comply with the requirements of proposed Division 8A, and
any industrial action taken following such a ballot would not be
protected industrial action under amendments proposed to section
170MQ [see item 21].

New
section 170NBDA - Form of ballot
paper

85. This new
section would require the ballot paper for a protected action
ballot to be in the prescribed form, and contain certain
information, including:

· the
name of the applicant or applicant’s agent;

· the
types of employees who are to be balloted [for example, their
occupations, work groups and locations - similarly required in
existing paragraph 170MJ(b)];

· the
name of the ballot agent authorised to conduct the
ballot;

· the
question or questions to be put to voters, including details
of:

-
the precise nature and form of the intended industrial action to be
voted on;

-
the day or days on which it is intended that the proposed
industrial action will take place;

-
the duration of the proposed industrial action;

· the
statement set out in proposed Schedule 5 [to be inserted by item
33]; and

· instructions to the voter on how to complete the
ballot paper.

This amendment proposes to simplify the
requirements for the form of the ballot
paper.

The proposed change to paragraph
170NBDA(d) is to bring these requirements into line with the
matters that the Commission must include in the order under section
170NBCI as amended by Amendment No
28.

The proposed change to paragraph
170NBDA(e) is required as it is now proposed not to prescribe the
form of the statement that the vote is secret and that the voter is
free to choose to vote for or against the action
proposed.

Amendment No.
38 - item 23, page 26 (line
2)

This amendment would effect a change in
terminology consequential upon the changes proposed by Amendment
No. 14.

New
section 170NBDB - Who can vote

86. This new
section would provide that a person may not vote in a ballot unless
the persons name is on the roll of voters for the ballot
(established under new section 170NBCL
above).

New
section 170NBDC - Declaration of ballot
results

87. This new
section would require the ballot agent to make a declaration of the
results of the ballot in writing, and inform the applicant, the
affected employer and the Industrial Registrar, in writing, of the
results as soon as practicable after the end of
voting.

New
section 170NBDD - Effect of
ballot

88. Under
new section 170NBDD, industrial action would only be authorised by
a protected action ballot if:

· the
action was the subject of a ballot conducted in accordance with the
provisions of proposed Division 8A;

· at
least 50% of persons on the roll of voters for the ballot
established under proposed section 170NBCL voted in the ballot;
and

· more
than 50% of the votes cast in the ballot approved the industrial
action.

This amendment would provide the
Commission with the flexibility to vary certain prerequisites for
taking protected action, in exceptional
circumstances:

· the period of written notice required
for taking protected action (from the 3 working days provided for
in section 170MO, to up to 7 working days);
and

· the quorum required for a valid ballot
(from the 40% that it is proposed will be provided for in section
170NBDD - see notes to Amendment No. 40 - to a lower
percentage).

The Bill does not attempt to set out
the range of factors which might, in relation to a particular
ballot, constitute exceptional circumstances. This will be a
matter for the Commission on a case by case basis. However,
as is made clear by the use of ‘exceptional’, it is
envisaged that the standard requirements would apply in the vast
majority of cases.

Amendment No.
30 - item 23, page 22 (line
5)

Amendment No.
31 - item 23, page 23 (line
30)

Amendment No.
32 - item 23, page 23 (line
33)

Amendment No.
33 - item 23, page 24 (line
8)

Amendment No.
34 - item 23, page 24 (line
11)

Amendmen t No. 35 - item 23, page 25 (line
5)

Amendment No.
36 - item 23, page 25 (line
7)

The Bill as introduced includes a
requirement that each application nominate a proposed ballot
agent. That requirement, contained in proposed section
170NBBA of the Bill, is to be removed (see Amendment No.
14).

This change necessitated removal of the
definition of ballot
agent (as a person is not properly referred
to as a ballot agent until authorised by the
Commission).

Amendment Nos. 30-36 would make
consequential changes to references in the Bill to ballot agents
necessitated by these changes.

This amendment to proposed section
170NBDD (together with the new subsection 170NBDD(3) that is to be
inserted by Amendment No. 40) relates to the requirement that a
minimum percentage of those eligible to vote must vote for a ballot
to validly authorise the taking of protected
action.

The Bill sets the quorum at 50% of
those on the roll of voters. This quorum is to be changed to
a requirement that the prescribed percentage cast a
vote. (The term prescribed percentage is to be
defined in new subsection 170NBDD(3) that is to be inserted by
Amendment No. 40).

Amendment No.
40 - item 23, page 26 (after line
14)

This amendment would insert two new
subsections into section 170NBDD of the Bill as
introduced.

Proposed new subsection (2) would
clarify that protected industrial action authorised in relation to
a particular bargaining period may only be taken
during that bargaining period. Protected
action that is authorised but had not been taken when a bargaining
period ends cannot be taken during a subsequently notified
bargaining period. A fresh protected action ballot would be
required to authorise any industrial action during that subsequent
bargaining period.

Proposed new subsection (3) would
insert a definition of the term prescribed
percentage for the purposes of the requirement
that a minimum percentage of those on the roll of voters must cast
a vote for a ballot to validly authorise protected
action.

The standard requirement is to be
reduced from 50% (as proposed in the Bill as introduced) to 40%,
with the possibility of a lower percentage if specified by the
ballot order (see proposed subsection 170NBCI(4) - to be
inserted by Amendment No. 29).

New
section 170NBDE - R egistrar to record questions put in ballot and
results

89. New
section 170NBDE would require the Industrial Registrar to keep, for
each ballot held under Division 8A, a record of questions put to
the voters and the results of the ballot. The Registrar would
be required to publish the results of a ballot as soon as
practicable after being notified of the results by the ballot
agent.

New
Subdivision E - Ballot agents

New
section 170NBE - Register of ballot
agents

90. This
section would require the Industrial Registrar to maintain a
register of ballot agents who may be authorised by the Commission
to conduct ballots under Division 8A. Before entering a
person’s name on the register, the Registrar will be required
to be satisfied that the person is a fit and proper person to
conduct such ballots.

91. In
deciding whether a person is a fit and proper person, new
subsection 170NBE(3) would require the Registrar to have regard to
the following factors:

· whether the person is capable of ensuring the
security and secrecy of votes cast in a ballot, and ensuring that a
ballot is fair and democratic;

· whether the person is likely to maintain
confidentiality of the records that they are required to keep in
relation to the ballot;

· if
the person is a natural person, whether the person has contravened
a prescribed law within the last five years; and

· if
the person is a body corporate, whether the body or any of its
officers or employees have contravened a prescribed law within the
last 5 years.

92. New
subsection 170NBE(4) would provide that where a person has
contravened a prescribed law in the last 5 years, the Registrar
would not be able to include the person on the register of ballot
agents unless the person has been granted leave under proposed
section 170NBEA to seek to have their name included on the
register.

93. A body
corporate ballot agent will be prohibited authorising a person who
has contravened a prescribed law in the last 5 years to participate
in conducting a ballot [new subsection
170NBE(5)].

94. Proposed
subsection 170NBE(6) defines prescribed law for the purposes of new
section 170NBE. A ‘prescribed law’ would include
laws the contravention of which is punishable by imprisonment for
more than 12 months, those involving dishonesty punishable by
imprisonment for more than 6 months, and provisions of the Act
dealing with freedom of association, protected action ballots and
other forms of ballots.

Amendment No.
41 - item 23, page 26 (line
19)

Amendment No.
42 - item 23, page 26 (line
22)

Amen dment No.
43 - item 23, page 26 (line
24)

The Bill as introduced included a
requirement that each application nominate a proposed ballot
agent. That requirement, contained in proposed section
170NBBA of the Bill, is to be removed (see Amendment No.
14).

This change necessitated removal of the
definition of ballot
agent (as a person is not properly referred
to as a ballot agent until authorised by the
Commission).

Amendment Nos. 41-43 would make
consequential changes to references necessitated by these
changes .

New
section 170NBEA - Leave to be included on
register

95. Under
new subsection 170NBEA(1) a person who has contravened a prescribed
law, as defined in new subsection 170NBE(6), within the last 5
years would be able to apply to the Federal Court for leave to seek
to have their name entered on the register of ballot agents
maintained by the Industrial Registrar. New subsection
170NBEA(2) would allow the Court to impose any conditions or
restrictions as the Court thinks fit when granting leave under the
section. New subsection 170NBEA(3) would allow the Court to
revoke leave at any time on the application of the Industrial
Registrar.

New
section 170NBEB - Removal from
register

96. This new
section would allow the Industrial Registrar to remove a
person’s name from the register of ballot agents if he or she
is satisfied that the person was not a fit and proper person to
conduct protected action ballots. Before removing a
person’s name, the Registrar is to be required to give the
person notice of the intention to remove their name from the
register together with reasons in writing, and to give the person a
reasonable opportunity to make submissions about the proposed
removal.

The Bill as introduced provided for the
Industrial Registrar to maintain a register of ballot agents, and
set out criteria for inclusion on the register (see sections
170NBE, 170NBEA and 170NBEB of the Bill as
introduced).

This amendment would delete the
requirement for a register of ballot agents to be retained, and
replace it with a requirement that the Commission, in determining
who to appoint as a ballot agent, be satisfied of certain
matters.

The matters of which the Commission
must be satisfied are: whether the person is capable of ensuring a
secure and confidential ballot that uses fair and democratic
processes (mirroring requirements in subsection 170NBE(3)(a) of the
Bill as introduced), and whether the person is a ‘fit and
proper person’ to be an authorised ballot
agent.

The regulations may specify criteria
relevant to whether a person is a ‘fit and proper
person’.

New
subdivision F - Funding of
ballots

New
section 170NBF - Liability for cost of
ballot

97. New
section 170NBF would provide that the applicant for a ballot order
is liable for the cost of holding the ballot, and that where a
ballot application was made jointly, each applicant is jointly and
severally liable for the cost of holding the
ballot.

New
section 170NBFA - Partial reimbursement of cost of
ballot

98. This new
section would allow an applicant to seek reimbursement of some of
the costs of holding a ballot under Division 8A from the
Commonwealth.

99. If an
applicant for a protected action ballot notifies the Industrial
Registrar of the costs incurred by the applicant in holding the
ballot within a reasonable time after completion of the ballot, the
Industrial Registrar would then be required to determine what
proportion of these costs were reasonably and genuinely incurred by
the applicant in holding the ballot (the ‘reasonable ballot
cost’) [new subsection 170NBFA(1)].

100. New subsection
170NBFA(2) establishes that the Commonwealth is liable for 80% of
the ‘reasonable ballot cost’. Where there are
joint applicants, new subsection 170NBFA(3) proposes a formula for
calculating the proportion of the ‘reasonable ballot
cost’ that the Commonwealth would be liable to pay to each
joint applicant.

101. Where joint
applicants for a secret ballot request the Commonwealth to
reimburse the reasonable costs of the ballot in other than equal
proportions, the Commonwealth is to distribute that amount in
accordance with the request [new subsection
170NBFA(4)].

102. New subsection
170NBFA(5) would enable regulations to be made prescribing matters
that are to be taken into account by the Industrial Registrar in
determining whether ballot costs are reasonably and genuinely
incurred for the purposes of proposed subsection
170NBFA(1).

New
Subdivision G - Miscellaneous

New
section 170NBG - Identity of certain persons not to be disclosed by
Commission

New
section 170NBGA - Identity of certain persons not to be disclosed
by individuals

103. New subsection
170NBG(1) would provide that the Commission must not disclose
information that would identify a person
as:

· an
applicant for a ballot order, where the applicant is represented by
an agent;

· an
employee who supports an application for a ballot order, for the
purposes of proposed subsection 170NBB(3);

· a
person whose name appears on the roll of voters for a ballot;
or

· a
person who is party to an Australian Workplace
Agreement.

104. New subsection
170NBG(2) would establish exceptions to the prohibition in new
subsection 170NBG(1): the Commission could disclose information
that would otherwise be prohibited under subsection (1) if the
disclosure was permitted by any Act or by regulations made under an
Act, or if the disclosure had been authorised in writing by the
person whose identity would otherwise be
protected.

105. A similar
prohibition on revealing information would apply to persons
generally under proposed section 170NBGA. Under this section,
it would be an offence to disclose the protected information which
is that listed in section 170NBG. The proposed maximum
penalty for this offence is 6 months
imprisonment.

106. Proposed exceptions
to the offence are set out in new subsection 170NBGA(2), based on
those in existing subsection 170WHB(2): a person could disclose
protected information if the disclosure was made by a Registry
official or authorised ballot agent in the course of performing
their functions or duties, if the disclosure was permitted by any
Act or by regulations made under an Act, or if the disclosure had
been authorised in writing by the person whose identity would
otherwise be protected.

107. New subsection
170NGBA(3) would specify that, for the purposes of determining the
burden of proof in proceedings relating to offences under proposed
subsection 170NBGA(1), the exceptions set out in proposed
subsection 170NBGA(2) would be part of the description of the
offence. This subsection addresses the requirements of the
Criminal Code.

108. Definitions of the
terms ‘protected information’ and ‘Registry
official’, which would be used in new section 170NGBA, are
set out in proposed subsection
170NGBA(4).

New
section 170NBGB - Immunit y if
person acted in good faith on ballot
results

109. This new section
proposes that where industrial action has been authorised by the
results of a ballot, and an organisation or person goes ahead and
organises or participates in industrial action acting in good faith
on the results of the ballot, no legal action is able to be taken
against that organisation or those persons if it turns out that the
action was not in fact protected.

110. This defence would
not apply in cases where the industrial action resulted in personal
injury, wilful or reckless damage to property or the unlawful
taking or keeping of property. Also, new
subsection 170NGB(2) provides that there would be no immunity
against legal action for defamation in the course of industrial
action. (These exceptions are in line with the exceptions to
immunity provided by existing section
170MT.)

This amendment proposes to add three
new sections into the Bill as introduced to protect the integrity
of the conduct of ballots and ballot results, by limiting the
circumstances in which ballot orders, the conduct of ballots and
ballot results may be challenged.

Under proposed section 170NBGBA, a
ballot order, or a decision or order relating to a ballot order,
can only be challenged where :

· it is being alleged that another party
has contravened (other than in a technical way) the secret ballots
provisions or a Commission order relating to secret ballots; or
misled the Commission in proceedings to which the order or decision
relates; and

· the relevant court considers that there
is a reasonable basis for the
allegation.

Proposed section 170NBGBB protects
ballot results and the conduct of ballots from challenge where the
procedures required by the Act, the regulations or an order of the
Commission are complied with other than
where:

· it is being alleged that another party
has contravened (other than in a technical way) the secret ballots
provisions or a Commission order relating to secret ballots; acted
fraudulently in relation to the conduct or declaration; or acted in
such a way as to cause an irregularity that affected, or could have
affected the outcome of the ballot;
and

· the relevant court considers that there
is a reasonable basis for the
allegation.

Proposed subsection 170NBGBB(3)
defines irregul arity, and makes it clear that the conduct of a
ballot extends to the compilation of the roll of
voters.

Proposed section 170NBGBC makes clear
that the limitations in proposed sections 170NBGBA and 170NBGBB do
not prevent a penalty being imposed upon a person for a
contravention of the Act. The effect of this provision would
be to ensure that criminal and civil sanctions that would otherwise
be relevant to conduct in relation to a protected action ballot
remain applicable (for example, the criminal sanctions contained in
section 317 of the Act).

New
section 170NBGC - Preservation of ballot
papers

111. Under new section
170NBGC a ballot agent who conducts a ballot under Division 8A
would be required to keep the roll of voters, all ballot papers,
envelopes and other records relevant to the ballot for one year
after completion of the ballot.

Amendment No.
46 - item 23, page 32 (line
2)

This amendment would effect a change in
terminology consequential upon the changes proposed by Amendment
No. 14.

New
se ction 170NBGD - Conferral of function on
AEC

112. This new section
would ensure that if the Australian Electoral Commission (AEC) is
the authorised ballot agent for a ballot under Division 8A, it is a
function of the AEC to conduct the ballot. (If the Commission
authorised the AEC to conduct a ballot in a ballot order, the AEC
would be required to conduct the ballot.)

New
section 170NBGE - Regulations

113. Regulations may be
made in relation to the following matters:

· the
qualifications and appointment of applicant’s
agents;

· procedures to be followed in conducting a ballot
or class of ballot;

· the
qualifications, appointment, powers and duties of
scrutineers;

· the
entry and removal of names from the register of ballot agents;
and

· the
manner in which ballot results are to be
published.

This amendment to section 170NBGE of
the Bill as introduced is consequential upon removal of the
requirement that the Industrial Registrar maintain a register of
ballot agents (see Amendment No. 44), as authorisation to make
regulations in relation to the entry and removal of names from the
register will no longer be required.

Item 24 - After paragraph 170ND(d)

Item
25 - At the end of section 170NF

Item
26 - After subsection 178(1)

114. These items deal
with the enforcement of orders and directions under proposed
Division 8A [item 23].

115. Item 24 proposes to
insert a new paragraph 170ND(da) into the Act. The new
paragraph would specify that proposed section 170NBCQ (requiring
compliance with an order or direction made in relation to a
protected action ballot), is a penalty provision for the purposes
of Division 10 of Part VIB.

116. Item 25 would amend
section 170NF to set out who may apply to an eligible court for an
order imposing a penalty on a person or organisation who has failed
to comply with an order or direction of the Commission under
Division 8A; namely: employees eligible to vote in a ballot, an
employer, an ballot applicant, an inspector, or any person
prescribed by the regulations. (Note that existing section
170NG also allows an eligible court to grant an injunction
requiring a person not to contravene or to cease contravening a
penalty provision.)

117. Item 26 would
ensure that orders of the Commission under Division 8A of Part VIB
could only be enforced under Division 10 of Part VIB as outlined
above, by making clear that existing section 178(1) (which provides
for penalties for breach of Commission awards and orders) would not
apply to orders under Division 8A.

Item
27 - At the end of section s
287 and 288

118. As entitlement to
vote in a protected action ballot will be regulated by new Division
8A, item 27 proposes amending sections 287 and 288 to specify that
neither section applies to protected action ballots conducted under
new Division 8A.

119. Section 287
provides that financial members of an organisation have the right
to vote in any ballot taken for the purpose of submitting a matter
to a vote of the members of the organisation. Section 288
provides that financial members of an organisation may request
information regarding ballots from the returning officer to
determine whether there has been an irregularity in relation to the
ballot.

Item
28 - Section 307

120. This item proposes
the repeal of existing section 307, which creates an offence
regarding false or misleading material in an application for a
secret ballot under existing section 136 (as the relevant aspects
of section 136 are to be repealed), and substituting two similar
provisions regarding ballots under Division 8A: one dealing with
applications in general and the other dealing with joint
applications.

New
section 307 - False statement in application for protected
action ballot order

121. These new sections
would prohibit a person making a statement or joining with others
in making a statement in an application for a protected action
ballot, recklessly as to whether the statement is false or
misleading.

122. The proposed
maximum penalty for offences against new sections 307 and 307A is
$1000.

123. This item would
insert a provision similar to existing section 314, which would
prohibit a person knowingly or recklessly contravening proposed
section 170NBGC (which would require the preservation of ballot
papers for one year after completion of the ballot - see item
23).

124. The proposed
maximum penalty for an offence against new section 314A is a $500
fine, 6 months imprisonment, or both.

Item
30 - Paragraph 317(5)(a)

Item
31 - Paragraph 317(5)(b)

Item
32 - At the end of section 317

125. These items deal
with offences in relation to ballots.

126. Item 30 proposes a
consequential amendment to paragraph 317(5)(a) to remove the
reference to secret ballots ordered under section 136. It is
proposed that existing provisions in section 136 allowing the
Commission to order a secret ballot would be repealed [item
7].

127. Item 31 proposes an
amendment to paragraph 317(5)(b) to specify that the offences set
out in section 317 apply to ballots conducted under Division 7A of
Part IX (these are ballots concerning withdrawal of organisations
from amalgamations). [This corrects an
oversight.]

128. Item 32 proposes to
insert a new subsection 317(6) into the Act. This new
subsection would provide that a ballot referred to in subsections
317(2), (3) and (4) includes a ballot held under Division 8A of
Part VIB, and would ensure that offences set out in these
subsections apply to protected action
ballots.

Item
33 - After Schedule 4

129. This item proposes
to add a new Schedule to the Act.

New
Schedule 5 - Statement to be included on protected action ballot
paper

130. This new Schedule
contains a statement that would be included in all ballot papers
issued for a protected action ballot under new section 170NBDA
[item 23]. The statement would inform employees who receive a
ballot paper of their legal rights regarding participation in the
ballot and participation in any industrial action that is
authorised as a result of the ballot.

This amendment would remove item 33
from the Bill. Item 33 proposed the insertion of a new
Schedule 5 into the Act (containing the text of a statement to be
included on ballot papers).

This amendment is consequential to the
changes made by Amendment No. 37 to the ballot paper
requirements.

Part
2 - Application and saving

Item
34 - Application of amendments

131. Subitem (1) would
provide that the amendments in this Bill would apply to industrial
action taken on or after the day on which the amendments
commence.

132. Subitem (2) would
provide that the amendments would not apply to industrial action
taken after the commencing day if:

· the
action is protected action under subsection 170ML(2) of the
Act;

· the
existing requirements of sections 170MO and 170MR - to provide
written notice of the intended industrial and, if an organisation
is a negotiating party, that the action was properly authorised -
were met before commencement day; and

· the
action is taken within 14 days after
commencement.

133. Any action
different to that specified in the notice given under s170MO or any
continuation of action after 14 days from commencement of the new
provisions would require the authorisation of a protected action
ballot under proposed new Division
8A.

Item
35 - Saving

134. This item deals
with secret ballots ordered by the Commission before commence under
sections 135(2) and (2B), which would be repealed by items 4 and 5
of this Bill.

135. If a ballot under
these provisions has been ordered by the Commission but the ballot
result is not known when the amendments commence (because the
ballot has not yet been held or the result of the ballot has not
yet been determined), the order for the ballot would continue to
have effect and the existing elements of Division 4 of Part VI of
the Act would continue to apply.

136. In addition,
existing section 170MQ would apply. (That is, any action
taken by a union or member or employee would not be protected
action unless the ballot has been held and has approved the
action.)

137. However, if such a
ballot approves industrial action, any such action taken following
the ballot must begin within 14 days of the ballot result being
declared and 3 working days notice of the action must be given to
the employer.

138. If a ballot under
the relevant existing provisions is conducted and finalised before
the commencing day, then item 34 would
apply.

· pay and conditions for outworkers,
but only to the extent necessary to ensure that their overall pay
and conditions of employment are fair and reasonable in comparison
with the pay and conditions of employment specified in a relevant
award or awards for employees who perform the same kind of work at
an employer’s business or commercial premises.

In
addition, s.89A(6) permits the Commission to include in an award
provisions that are incidental to the matters in s.89A(2) and
necessary for the effective operation of the award.

[2] There are some limited exceptions to
section 89A, namely 'exceptional matters orders' - see
ss.89A(7) and 120A - and awards made under s.170MX of the WR Act -
see s.170MY(2).

[3]
That is, they cease to have effect at the end of the interim
period.

[4]
Awards made under section 170MX of the WR Act, orders made under
section 501 of the Act andncertain enterprise agreements formalised
as consent awards do not require simplification.